OTHERWISE: Tobacco Research Center replies to ALI on industry influence

OTHERWISE: Tobacco Research Center replies to ALI on industry influence:
The Center for Tobacco Control Research and Education hassharply criticized the ALI's response to the Center's recent study.  The Center revealed that fifty years ago tobacco industry lawyers secretly - and apparently successfully - lobbied American Law Institute Reporter William Prosser.  His draft was modified to exempt "good tobacco" from the new strict liability rule in the ALI's landmark Section 402A the scripture of contemporary product liability law.  The ALI responded with a cursory "we tell our members to leave their clients at the door".  The Center responds:

"The ALI’s refusal to engage the issues we document is the most troubling aspect of their response. If  the ALI’s goal is to create credible, independent assessments of law, it  must implement the same conflict of interest policies that have become routine at other comparable organizations. The ALI responders’ out-of-hand dismissal of the unrefuted documentary evidence we present and the associated recommendations to correct serious flaws in  the ALI’s conflict of interest policies belie their professed commitment to “consider legitimate criticism expressed in careful and responsible scholarship."

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Gulf Coast States Jockey Over Settlement on Deepwater Horizon Oil Spill - NYTimes.com

Gulf Coast States Jockey Over Settlement on Deepwater Horizon Oil Spill - NYTimes.com: 
by Barry Meier and Clifford Krauss

"With a major civil trial scheduled to start Monday in New Orleans against BP over damages related to the explosion of an offshore drilling rig in 2010, federal officials and those from the five affected Gulf Coast states are trying to pull together to strike an 11th-hour settlement in the case"

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Crowd Cheers After McCain Tells Aurora Victim's Mother She Needs 'Straight Talk' (VIDEO) | TPM LiveWire

Talking Points Memo reports that this video was unfairly edited by the local TV station.  Before his blunt "straight talk"  McCain did offer polite condolences to the inquirer.  -  GWC
Crowd Cheers After McCain Tells Aurora Victim's Mother She Needs 'Straight Talk' (VIDEO) | TPM LiveWire: "Constituents at a town hall hosted by Sen. John McCain Wednesday in Phoenix cheered after the Arizona Republican told the mother of an Aurora, Colo. shooting victim that an assault weapons ban could not get through Congress."



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Barack Obama - editor

Why haven't the White House speechwriters learned to double-space?  
Click HERE for a zoomable version which enables you to see Barack Obama's edits of the draft State of the Union Address.

Hip Implant’s Risks Inadequately Assessed, DePuy Report Found in 2010 - NYTimes.com

Hip Implant’s Risks Inadequately Assessed, DePuy Report Found in 2010 - NYTimes.com:

A review conducted internally by Johnson & Johnson soon after it recalled a troubled hip implant found that the company had not adequately assessed the device’s potential risks before it was used in more than 90,000 patients, court testimony on Thursday showed.

The engineering report, which was done in 2010, also found that Johnson & Johnson’s orthopedic unit had used inadequate or incorrect standards in trying to assess some of those risks before first selling the implant in 2003. The device at issue — the Articular Surface Replacement, or A.S.R. — proved to be among the most flawed orthopedic devices sold in recent decades.

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The Hip Replacement Case Shows Why Doctors Often Remain Silent - NYTimes.com

The Hip Replacement Case Shows Why Doctors Often Remain Silent - NYTimes.com: by Barry Meier

THE note sent by a doctor to several executives at Johnson & Johnson was blunt: an artificial hip sold by the company was so poorly designed that the company should slow its marketing until it understood why patients were getting hurt.

Enlarge This Image

Andrew Testa for The New York Times

A faulty hip replacement a doctor removed from a patient.

The doctor, who also worked as a consultant to Johnson & Johnson, wrote the note nearly two years before the company recalled the device in 2010. And it was far from the only early warning those executives got from doctors who were paid consultants. Still, the company’s DePuy orthopedic unit plowed ahead, and those consultants never sounded a public alarm to other doctors, who kept implanting the device.

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OTHERWISE: Unquotable: The Annotated 2013 State of the Union - James Fallows - The Atlantic

Except for 'not red states, not blue states, but the United States of America" Barack Obama - a fine rhetorician - is not a generator of snappy lines.  No Kennedyesque "ask not what your country can do for you..." phrase will capture the Obama years.  Former Presidential speechwriter and analyst of political rhetoric James Fallows dissects Obama's fifth State of the Union address.  An excerpt from the Fallows intro  follows. Click though for the annotated full  text of the SOTU.  Well worth the effort.  - GWC

OTHERWISE: Unquotable: The Annotated 2013 State of the Union - James Fallows - The Atlantic:



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OTHERWISE: Judge Rakoff gets vigorous support in Second Circuit Appeal

OTHERWISE: Judge Rakoff gets vigorous support in Second Circuit Appeal:
Judge Rakoff got some good support in his confrontation with the S.E.C. on the sweetheart deal with financial giant Citigroup. -  gwc



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Reporter as Amicus Applies Restatement 3rd Duty Analysis to PCB Exposure Case

In Nishida v. Pharmacia Third Restatement of Torts Reporter Michael Green joins with his colleague Jon Cardi and several other torts professors as friends of the court  to persuade the Missouri Court of Appeals that a trial court misunderstood the Restatement and the applicable California law.   The trial judge concluded that the chemical company did not owe a duty of reasonable care to one exposed to its PCB's because the product uses and  type of harm plaintiff suffered (non-Hodgkins lymphoma) were not foreseeable to the manufacturer Monsanto (now known as Pharmacia).  Such particular determinations violate the essential thrust of the Restatement - and California law.

Green and Cardi, et al.  assert, in the amicus brief drafted by Texas appellate lawyer Brent Rosenthal that

The essential characteristic of a no-duty determination is that it applies to a specific category of factual scenarios and can be applied in similar cases without reference to the particular facts of those cases.  

Viewing the question of duty as a categorical determination rather than as a fact specific inquiry “also has the benefit of providing clearer rules of behavior for actors who may be subject to tort liability and who structure their behavior in response to that potential liability.”

The trial court held that persons exposed to PCB's in the waste disposal process were "bystanders", not persons whose exposure was "foreseeable or intentional".  Such a fact-sensitive determination intrudes on the jury's province - which is to determine the question of foreseaebility.  Instead the court preempted the jury's role of determining whether Monsanto - maker of over 99% of PCB containing products - should have foreseen and acted to protect those who would be exposed to the toxin at all points in the product life cycle - including disposal.

Students in my class who read the brief will note that two of the cases cited provided the facts for final exam questions. - gwc
h/t Torts Prof Blog
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City Bar Honors Chen Guang cheng

Chen Guangcheng at the National Cathedral

Chen Guangcheng, the blind Chinese activist dubbed a "barefoot lawyer" by his champion Prof. Jerome Cohen, will be presented with an honorary membership in the New York City Bar Association - the nation's oldest.


The Dangers of Rights Lawyering in China and the Role of 
American Law Firms: A Conversation with Chen Guangcheng 
and Professor Jerome Cohen; 
Presentation of City Bar 
Honorary Membership to Chen Guangcheng
Thursday, February 7, 2013, 6 pm - 8 pm 
New York City Bar Association, 42 West 44th Street, New York, NY